Ivarene and Victor Hosek v. Rosale Scott

• Court: Court of Appeals of Texas
• Decided: October 24, 2014
• Docket: 04-14-00655-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas October 24, 2014

No. 04-14-00655-CV

Ivarene and Victor HOSEK, Appellant

v.

Rosale SCOTT, Appellee

From the 81st Judicial District Court, Atascosa County, Texas Trial Court No. 13-06-0559-CVA Honorable Fred Shannon, Judge Presiding

ORDER The trial court signed a final judgment on June 19, 2014. A timely motion for new trial was filed on July 21, 2014. TEX. R. CIV. P. 329b(a). Because appellant timely filed her motion for new trial, the notice of appeal was due to be filed on September 17, 2014. See TEX. R. APP. P. 26.1(a). Appellants filed their notice of appeal on September 22, 2014. A motion for extension of time in which to file the notice of appeal was due on October 2, 2014, but was not filed. See TEX. R. APP. P. 26.3.

A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26); Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.–San Antonio 1998, no pet.) (stating same under current Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).

It is therefore ORDERED that appellants file, no later than November 10, 2014, a written response presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. If appellants fail to respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c).

_________________________________ Sandee Bryan Marion, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 24th day of October, 2014.

___________________________________ Keith E. Hottle Clerk of Court